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Federal & State Cases, Combined
marbury AND madison
Send to: TONRALIPU, ANDI SANDI
WASHINGTON UNIVERSITY OF
1100 NE CAMPUS PKWY
SEATTLE, WASHINGTON 981056605
Page 3
5 U.S. 137, *; 2 L. Ed. 60, **;
1803 U.S. LEXIS 352, ***; 1 Cranch 137
1 of 1 DOCUMENT
WILLIAM MARBURY v. JAMES MADISON, SECRETARY OF STATE OF
THE UNITED STATES.
SUPREME COURT OF THE UNITED STATES
5 U.S. 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352; 1 Cranch
137
February 24, 1803, Decided
the senate had advised and consented appoint ambassadors, other public
to their appointments as justices of ministers and consuls, and all other
the peace. The commissions were signed officers of the United States, whose
by the late president and the seal of appointments are not otherwise
the United States was affixed to the provided for. U.S. Const. art. II, §
commissions by the secretary of state. 3 declares, that he shall commission
The commissions were withheld from the all the officers of the United States.
applicants and they requested their
delivery. The Court granted a rule to Constitutional Law > The Presidency >
show cause, requiring the secretary of Appointment of Officials
state to show cause why a mandamus [HN2] An act of congress directs the
should not issue, directing him to secretary of state to keep the seal of
deliver to the applicant his the United States, to make out and
commission. No cause was shown and the record, and affix the said seal to all
applicant filed a motion for a civil commissions to officers of the
mandamus. The Court determined that United States, to be appointed by the
the applicant had a vested legal right President, by and with the consent of
in his appointment, because his the senate, or by the President alone;
commission had been signed by the provided that the said seal shall not
president, sealed by the secretary of be affixed to any commission before
state, and the appointment was not the same shall have been signed by the
revocable. The Court found that President of the United States.
because the applicant had a legal
title to the office, the laws afforded Constitutional Law > Separation of
him a remedy. However, the Court held Powers
§ 13 of the Act of 1789, giving the Constitutional Law > The Presidency >
Court authority to issue writs of Appointment of Officials
mandamus to an officer, was contrary [HN3] U.S. Const. art. II, § 2
to the Constitution and was void. authorizes congress to vest, by law,
the appointment of such inferior
OUTCOME: The rule was discharged. officers, as they think proper, in the
President alone, in the courts of law,
CORE TERMS: appointment, duty, or in the heads of departments.
secretary of state, appointed,
mandamus, seal, original Constitutional Law > The Presidency >
jurisdiction, removable, affixed, Appointment of Officials
peace, legal right, signature, [HN4] In the case of commissions, the
authorize, recorded, act of congress, law orders the secretary of state to
repugnant, solemnity, supposed, record them. When therefore they are
inferior, enquire, declare, vested, signed and sealed, the order for their
person appointed, last act, delivery, being recorded is given; and whether
transmission, transmitted, inserted in the book or not, they are
examinable, secretary, evidenced in law recorded. A copy of this record
is declared equal to the original, and
LexisNexis(TM) HEADNOTES Core the fees, to be paid by a person
Concepts requiring a copy, are ascertained by
law.
Constitutional Law > The Presidency >
Appointment of Officials Constitutional Law > The Presidency >
[HN1] U.S. Const. art. II, § 2 Appointment of Officials
declares, that the president shall [HN5] When a commission has been
nominate, and, by and with the advice signed by the President, the
and consent of the senate, shall appointment is made; and that the
Page 5
5 U.S. 137, *; 2 L. Ed. 60, **;
1803 U.S. LEXIS 352, ***; 1 Cranch 137
the secretary of state. The second prevent him from recording, and
section assigns new duties to the affixing the seal to civil commissions
secretary, in the performance of which of such officers as hold not their
it is evident, from their nature, he [***9] offices at the will of the
cannot be lawfully controlled by the President, after he has signed them
president, and for the nonperformance and delivered them to the secretary
of which he is not more responsible to for that purpose. By other laws he is
the president than to any other to make out and record in his office
citizen of the United States. It patents for useful discoveries, and
provides that he shall receive from patents of lands granted under the
the president all bills, orders, authority of the United States. In
resolutions and votes of the senate the performance of all these duties he
and house of representatives, which is a public ministerial officer of the
shall have been approved and signed by United States. And the duties being
him; and shall cause them to be enjoined upon him by law, he is, in
published, and printed copies to be executing them, uncontrollable by the
delivered to the senators and President; and if he neglects or
representatives and to the executives refuses to perform them, he may be
of the several states; and makes it compelled by mandamus, in the same
his duty carefully to preserve the manner as other persons holding
originals; and to cause them to be offices under the authority of the
recorded in books to be [***8] United States. The President is no
provided for that purpose. The third party to this case. The secretary is
section provides a seal of the United called upon to perform a duty over
States. The fourth makes it his duty which the President has no control,
to keep the said seal, and to make out and in regard to which he has no
and record, and to affix the seal of dispensing power, and for the neglect
the United States to all civil of which he is in no manner
commissions, after they shall have responsible. The secretary alone is
been signed by the President. The the person to whom they are entrusted,
fifth section provides for a seal of and he alone is answerable for their
office, and that all copies of records due performance. The secretary of
and papers in his office, state, therefore, being in the same
authenticated under that seal, shall situation, as to these duties, as
be as good evidence as the originals. every other ministerial officer of the
The sixth section establishes fees for United States, and equally liable to
copies, &c. The seventh and last be compelled to perform [***10] them,
section gives him the custody of the is also bound by the same rules of
papers of the office of the secretary evidence. These duties are not of a
of the old congress. Most of the confidential nature, but are of a
duties assigned by this act are of a public kind, and his clerks can have
public nature, and the secretary is no exclusive privileges. There are
bound to perform them, without the undoubtedly facts, which may come to
control of any person. The President their knowledge by means of their
has no right to prevent him from connection with the secretary of
receiving the bills, orders, state, respecting which they cannot be
resolutions and votes of the bound to answer. Such are the facts
legislature, or from publishing and concerning foreign correspondences,
distributing them, or from preserving and confidential communications
or recording them. While the between the head of the department and
secretary remains in office the the President. This, however, can be
President cannot take from his custody no objection to their being sworn, but
the seal of the United States, nor may be a ground of objection to any
Page 11
5 U.S. 137, *; 2 L. Ed. 60, **;
1803 U.S. LEXIS 352, ***; 1 Cranch 137
would answer. On the one hand he bound to disclose any thing which
respected the jurisdiction of this might tend to criminate himself.
court, and on the other he felt
Mr. Lincoln thought it was going a
himself bound to maintain the rights
great way to say that every secretary
of the executive. He was acting as
of state should at all times be liable
secretary of state at the time when
to be called upon to appear as a
this transaction happened. He was of
witness in a court of justice, and
opinion, and his opinion was supported
testify to facts which came to his
by that of others whom he highly
knowledge officially. He felt himself
respected, that he was not bound, and
delicately situated between his duty
ought not to answer, as to any facts
to this court, and the duty he
which came officially to his knowledge
conceived he owed to an executive
while acting as secretary of state.
department; and hoped the court would
The questions being written were give him time to consider of the
then read and handed to him. He subject.
repeated the ideas [***14] he had
The court said, that if Mr. Lincoln
before suggested, and said his
wished time to consider what answers
objections were of two kinds.
he should make, they would give him
1st. He did not think himself time; but they had no doubt he ought
bound to disclose his official to answer. There was nothing
transactions while acting as secretary confidential required to be disclosed.
of state; and If there had been he was not obliged
to answer it; and if he thought that
2d. He ought not to be compelled
any thing was communicated to him in
to answer any thing which might tend
confidence he was not bound to
to criminate himself.
disclose it; nor was he obliged to
Mr. Lee, in reply, repeated the state any thing which would criminate
substance of the observations he had himself; but that the fact whether
before made in answer to the such commissions had been in the
objections of Mr. Wagner and Mr. office or not, could not be a
Brent. He stated that the duties of a confidential fact; it is a fact which
secretary of state were twofold. In all the world have a right to know.
discharging one part of those duties If he thought any of the questions
he acted as a public ministerial improper, he might state his
officer of the United States, totally objections. [***16]
independent of the President, and that
Mr. Lincoln then prayed time till
as to any facts which came officially
the next day to consider of his
to his knowledge, while acting in that
answers under this opinion of the
capacity, he was as much bound to
court.
answer as a marshal, a collector, or
any other ministerial officer. But The court granted it and postponed
that in the discharge of the other further consideration of the cause
part of his duties, he did not act as till the next day.
public ministerial officer, but in the
At the opening of the court on the
capacity of an agent of the President,
next morning, Mr. Lincoln said he had
bound to obey his orders, and
no objection to answering the
accountable to him for his conduct.
questions proposed, excepting the last
And that as to any facts which came
which he did not think himself obliged
officially to his knowledge in the
to answer fully. The question was,
discharge of this part of his duties,
what had been done with the
he was not bound to answer. He agreed
commissions. He had no hesitation in
that Mr. Lincoln [***15] was not
Page 13
5 U.S. 137, *; 2 L. Ed. 60, **;
1803 U.S. LEXIS 352, ***; 1 Cranch 137
of law, to any persons holding offices signing and sealing; and the secretary
under the authority of the United does wrong if he withholds the
States." commission.
Many cases may be supported, in 3d. The third point is, whether in
which a secretary of state ought to be the present case a writ of mandamus
compelled to perform his duty ought to be awarded to James [***27]
specifically. By the 5th and 6th Madison, secretary of state.
sections of the act of congress, vol.
The justices of the peace in the
1. p. 43, copies under seal of the
district of Columbia are judicial
office of the department of state are
officers, and hold their office for
made evidence in courts of law, and
five years. The office is established
fees are given for making them out.
by the act of Congress passed the 27th
The intention of the law must have
of Feb. 1803, entitled "An act
been, that every person needing a copy
concerning the district of Columbia,"
should be entitled to it. Suppose the
ch. 86, § 11 and 4; page 271, 273.
secretary refuses to give a copy,
They are authorized to hold courts and
ought he not to be compelled? Suppose
have cognizance of personal demands of
I am entitled to a patent for lands
the value of 20 dollars. The act of
purchased of the United States; it is
May 3d, 1802, ch. 52, § 4, considers
made out and signed by the President
them as judicial officers, and
who gives a warrant to the secretary
provides the mode in which execution
to affix [***26] the great seal to
shall issue upon their judgments.
the patent; he refuses to do it; shall
They hold their offices independent of
I not have a mandamus to compel him?
the will of the President. The
Suppose the seal is affixed, but the
appointment of such an officer is
secretary refuses to record it; shall
complete when the President has
he not be compelled? Suppose it
nominated him to the senate, and the
recorded, and he refuses to deliver
senate have advised and consented, and
it; shall I have no remedy?
the President has signed the
In this respect there is no commission and delivered it to the
difference between the patent for secretary to be sealed. The President
lands, and the commission of a has then done with it; it become
judicial officer. The duty of the irrevocable. An appointment of a
secretary is precisely the same. judge once completed, is made forever.
He holds under the constitution. The
Judge Patterson enquired of Mr. Lee
requisites to be performed by the
whether he understood it to be the
secretary are ministerial, ascertained
duty of the secretary to deliver a
by law, and he has no discretion, but
commission, unless ordered so to do by
must perform them; there is no
the President.
dispensing power. In [***28]
Mr. Lee replied, that after the contemplation of law they are as if
President has signed a commission for done.
an office not held at his will, and it
These justices exercise part of the
comes to the secretary to be sealed,
judicial power of the United States.
the President has done with it, and
They ought therefore to be
nothing remains, but that the
independent. Mr. Lee begged leave
secretary perform those ministerial
again to refer to the Federalist, vol.
acts which the law imposes upon him.
2, Nos. 78 and 79, as containing a
It immediately becomes his duty to
correct view of this subject. They
seal, record, and deliver it on
contained observations and ideas which
demand. In such a case the
he wished might be generally read and
appointment becomes complete by the
Page 17
5 U.S. 137, *; 2 L. Ed. 60, **;
1803 U.S. LEXIS 352, ***; 1 Cranch 137
not known to the applicant till after In the order in which the court has
the argument of the case. viewed this subject, the following
questions have been considered and
It stated that on the third of
decided.
March, 1801, he was a clerk in the
department of state. That there were 1st. Has the applicant a right to
in the office, on that day, the commission he demands?
commissions made out and signed by the
2dly. If he has a right, and that
president, appointing William Marbury
right has been violated, do the laws
a justice of peace for the county of
of his country afford him a remedy?
Washington; and Robert T. Hooe a
justice of the peace for the county of 3dly. If they do afford him a
Alexandria, in the district of remedy, is it a mandamus issuing from
Columbia. this court?
The first object of enquiry is,
OPINIONBY:
1st. Has the applicant a right to
MARSHALL
the commission he demands?
OPINION: His right originates in an act of
congress passed in February, 1801,
[*153] [**66] Afterwards, on concerning the district of Columbia.
the 24th of February the following
After dividing the district into
opinion of the court was delivered by
two counties, the 11th section of this
the chief justice.
law, enacts, "that there shall be
Opinion of the court. appointed in and for [***33] each of
the said counties, such number of
At the last term on the affidavits
discreet persons to be justices of the
then read and filed with the clerk, a
peace as the president of the United
rule was granted in this case,
States shall, from time to time, think
requiring the secretary of state to
expedient, to continue in office for
show cause why a mandamus [*154]
five years.
should not issue, directing him to
deliver to William Marbury his [*155] It appears, from the
commission as a justice of the peace affidavits, that in compliance with
of the county of Washington, in the this law, a commission for William
district of Columbia. Marbury as a justice of peace for the
county of Washington, was signed by
No cause has been shown, and the
John Adams, then president of the
present motion is for a mandamus.
United States; after which the seal of
[***32] The peculiar delicacy of this
the United States was affixed to it;
case, the novelty of some of its
but the commission has never reached
circumstances, and the real difficulty
the person for whom it was made out.
attending the points which occur in
it, require a complete exposition of In order to determine whether he is
the principles, on which the opinion entitled to this commission, it
to be given by the court, is founded. becomes necessary to enquire whether
he has been appointed to the office.
These principles have been, on the
For if he has been appointed, the law
side of the applicant, very ably
continues him in office for five
argued at the bar. In rendering the
years, and he is entitled to the
opinion of the court, there will be
possession of those evidences of
some departure in form, though not in
office, which, being completed, became
substance, from the points stated in
his property.
that argument.
Page 19
5 U.S. 137, *; 2 L. Ed. 60, **;
1803 U.S. LEXIS 352, ***; 1 Cranch 137
to the secretary of state, the receipt power to control that discretion. The
of the treasurer upon a certificate subjects are political. They respect
required by the law, the president of the nation, not individual rights, and
the United States is authorized to being entrusted to the executive, the
grant him a patent. It is further decision of the executive is
enacted that all patents shall be conclusive. The application of this
countersigned by the secretary of remark will be perceived by adverting
state, and recorded in his office. If to the act of congress for
the secretary of state should choose establishing the department of foreign
to withhold this patent; or the patent affairs. This office, as his duties
being lost, should refuse a copy of were prescribed by that act, is to
it; can it be imagined that the law conform precisely to the will of the
furnishes to the injured person no President. He is the mere organ by
remedy? whom that will is communicated. The
acts of such an officer, as an
It is not believed that any person
officer, can never be examinable by
whatever would attempt to maintain
the courts.
such a proposition.
But when the legislature proceeds
[**70] It follows then that
to impose on that officer other
[HN10] the question, whether the
duties; when he is directed
legality of an act of the head of a
peremptorily to [***53] perform
department be examinable in a court of
certain acts; when the rights of
justice or not, must always depend on
individuals are dependent on the
the nature of that act.
performance of those acts; he is so
If some acts be examinable, and far the officer of the law; is
others not, there must be some rule of amenable to the laws for his conduct;
law to guide the court in the exercise and cannot at his discretion sport
of its jurisdiction. away the vested rights of others.
In some instances there may be The conclusion from this reasoning
difficulty in applying the rule to is, that [HN12] where the heads of
particular cases; but there cannot, it departments are the political or
is believed, be much difficulty in confidential agents of the executive,
laying down the rule. merely to execute the will of the
President, or rather to act in cases
[HN11] By the constitution of the
in which the executive possesses a
United States, the President is
constitutional or legal discretion,
invested with certain important
nothing can be more perfectly clear
political [***52] powers, in the
than that their acts are only
[*166] exercise of which he is to use
politically examinable. But where a
his own discretion, and is accountable
specific duty is assigned by law, and
only to his country in his political
individual rights depend upon the
character, and to his own conscience.
performance of that duty, it seems
To aid him in the performance of these
equally clear that the individual who
duties, he is authorized to appoint
considers himself injured, has a right
certain officers, who act by his
to resort to the laws of his country
authority and in conformity with his
for a remedy.
orders.
If this be the rule, let us enquire
In such cases, their acts are his
how it applies to the case under the
acts; and whatever opinion may be
consideration of the court.
entertained of the manner in which
executive discretion may be used, [*167] The power of nominating to
still there exists, and can exist, no the senate, and the power of
Page 26
5 U.S. 137, *; 2 L. Ed. 60, **;
1803 U.S. LEXIS 352, ***; 1 Cranch 137
Time of Request: July 10, 2003 12:38 AM EDT
Print Number: 1861:0:6549814
Number of Lines: 709
Number of Pages:
Send To: TONRALIPU, ANDI SANDI
WASHINGTON UNIVERSITY OF
1100 NE CAMPUS PKWY
SEATTLE, WASHINGTON 981056605